The Dream of Reason: A Response to Mattias Kumm

Nico Krisch is Professor of International Law at the Hertie School of Governance, Berlin  

We tend to fill voids with what we know. When we are thrown into unfamiliar spaces, we try to chart them with the maps we possess, construct them with the tools we already have. Working with analogies, extending and adapting existing concepts, seems usually much preferable to the creation of ideas and structures from scratch, not only because of the risks involved in the latter, but also because of our limits of imagination.

When we try to imagine the postnational space, it is not surprising then that we turn for guidance first to the well-known, the space of the national. The postnational, no doubt, is unfamiliar territory; the shape of its institutions, of allegiances and loyalties, of influence and power, submission and resistance is – sometimes radically – different from what we are familiar with. In Ruling the World?, David Kennedy nicely points out how little we actually know about this space, and how much anxiety this can provoke.

The global constitutionalist project seems to rescue us from this anxiety, it appears as a promise to structure the global level in a similar way to what we know from home. It returns to us a feeling of agency in the face of external circumstances, of reason when confronted with an institutional morass created through power, path dependence or mere accident. And it bears the promise that key political values, such as rights or democracy, will not be neglected simply because we are talking about issues beyond the nation state.

When it comes to spelling out what this means, however, the constitutionalist promise often gets watered down. It turns into constitutionalism with a small ‘c’ , into a quest merely for some stronger rights protection and a few more judicial review mechanisms, all part of a process of ‘constitutionalisation’ without a clear end goal. Samantha Besson’s paper in Ruling the World? highlights the gap between such approaches and what she rightly sees as a much more demanding domestic tradition of constitutionalism, but she too is the victim of adaptive preferences. Because the strong unitary, hierarchical element in constitutionalism clashes with the fragmented, chaotic structure of global governance, she quickly reinterprets ‘constitutionalism’ so as to make it fit – as a softer, more accommodating, broadly pluralist notion. Normatively, this may point into the right direction (I have defended a pluralist position elsewhere too, see here), but the link with ‘constitutionalism’ as we know it becomes very weak indeed.

Glossing over the extent of the challenge would not be Mattias Kumm’s style. In his paper in this volume (see Mattias’ EJIL:Talk! post here) – the focus of my short piece – it certainly is not, for it sets him on a ‘revolutionary’ path and promises us nothing less than a ‘Copernican turn’ in thinking about constitutionalism. He acknowledges that strong domestic constitutionalism does not fit the global space, but instead of resigning himself to that fact, he takes it as an encouragement to radically rethink the constitutional tradition, on the national as well as the postnational level. This leads him to develop a ‘cosmopolitan constitutionalism’ which eschews clear hierarchies, embraces pluralism and embeds it in a thick set of substantive and procedural norms, such as subsidiarity and due process. This, Mattias says, does not only allow us to think about the global order more productively, it also makes better sense of our current practices, be they of domestic constitutional or international origin. And in this, it is not only a proposal for how the global order should be structured in the future; it is an interpretation of the law as it stands, a suggestion for how to understand the paradigms that underlie constitutionalist discourses at present.

This undertaking is nothing if not ambitious, and it provides a number of important insights. I want to highlight three of them here. One concerns the nature of our engagement with the postnational space, its institutions and its legal order. Most commentators are reformist on this point: they seek continuity with established traditions and content themselves with circumscribed, feasible changes. Mattias is a revolutionary instead: he thinks in broader timeframes and emphasises break over continuity. Given how apologetic much of the more timid constitutionalist literature turns out to be, this bolder stance bears quite some promise: it tackles the big issues, instead of evading them with reference to the impossibility of change.

Secondly, Mattias is ready to think the global legal order as a whole, explicitly transcending traditional conceptions of the division between domestic and international law. The result is a proposal for ‘a general theory of public law’ that integrates the different elements, whether domestic, regional or international, into a common order. This takes seriously the increasingly blurred boundaries between the various levels of law and the challenge, common to all spheres, of structuring exercises of public power. In this, it can build on efforts such as that of Global Administrative Law, which have already taken up that challenge, but with a less encompassing ambition. Moving towards a ‘global public law’ may help us respond more fully to the challenge involved (though as I have pointed out elsewhere [see here], such a broader ambition also has serious difficulties).

A third key point is Mattias’s radical critique of statist constitutionalism. Many commentators, especially those from a constitutional law background, assume that domestic constitutional processes are intrinsically superior to those on the international level and should thus serve as the foundation of any attempt to think beyond the state. But as the paper rightly emphasises, ‘state constitutionalism’ has serious flaws too – not the least its limited inclusion of affected outsiders. In democratic terms, when issues of a transnational character are concerned, the decisive constituency should, in Mattias’s view, be transnational too. This has strong foundations in contemporary liberal political theory, and it suggests an independent, rather than derived, grounding of the different layers in today’s multi-level systems of governance.

If these are all the right starting points, the paper then takes a more problematic turn. One problem is conceptual: for all the idea of a break with old conceptions, it becomes difficult to see why we should regard this new constitutionalism as a form of ‘constitutionalism’ at all; the terminology evokes a continuity that hardly exists. For constitutionalism in its thick, foundational version – the one Samantha Besson rightly suggests should be the starting point of our translation efforts – is typically characterised by a text, adopted in a particular procedure, structuring and limiting all forms of public power, and superior to other, ordinary laws. Mattias’s ‘cosmopolitan constitutionalism’ does away with text and adoption and reinterprets the tradition as involving merely a ‘cognitive frame’ in which legal and political practice unfolds. What this cognitive frame encompasses, is induced from that practice: a number of substantive and procedural principles, such as subsidiarity and due process. But does this have much to do with the idea of a constitution as intervening and shaping that practice? It rather resembles earlier, largely descriptive uses of ‘constitution’ as the set of norms accepted in practice as structuring the institutions of a polity. But the connection with the modern idea of the constitution, for which since the American and French revolutions human agency has been key, is very tenuous at best.

On a second level, it is doubtful whether Mattias’s approach is a proper interpretation of actual constitutional practice, as he claims it is. He is certainly right to say that these days the jurisprudence of constitutional courts only has weak links with constitutional texts – courts have gone well beyond textual provisions through techniques such as proportionality tests and balancing, and they often enough disregard text when it seems inadequate to current circumstances. But saying that there is more than text to constitutional practice is not the same as saying that text does not matter. It is not a coincidence that in countries without a written constitution, such as the UK, courts typically feel they lack the legitimacy to exercise strong judicial review, especially of legislative action. And few commentators would doubt that even very strong courts, such as the US Supreme Court or the German Bundesverfassungsgericht, derive the largest part of their legitimacy from the constitutional document they base their judgments upon. This reliance might be hypocrisy or myth. But if one removed the texts, and with them the possibility to relate to past decisions of the people as pouvoir constituant, even such strong courts would end up naked – stripped of their most important clothes, they would quickly lose much of their aura and acceptance.

This leads us into a problem on yet a third level, one of a normative kind. Mattias is very explicit about his rejection of popular sovereignty as the foundation of constitutional authority – for him, a ‘constitution’ should not be grounded in the act of will of an existing people, it should instead follow from an interpretation of practice guided by precepts of public reason. Much of this interpretative approach is indebted to Ronald Dworkin’s theories of law and constitutional interpretation, but it takes them to new heights, or at least extremes. For if much of Dworkin’s interpretative approach is about understanding the meaning of law within a given, relatively stable framework, Mattias applies it to a setting where precisely this framework is in doubt. As a result, moral ideals – weighty enough in Dworkin to fill in where previous practice leaves gaps – take over almost completely. For in the postnational space, practice is so divided and disagreement so strong that there will be always be huge gaps morality can fill. And this is what happens: among all the potential candidates for constitutional paradigms, Mattias chooses the ones that best fit his vision of liberal democracy. This is moral fiat, and it completely flattens the diversity of values so characteristic of postnational society.

This also implies the relegation of public autonomy to a secondary place. In most constitutional theory, the opposite is true, and not just in the rather trivial sense that through a constitution the people as a collective entity reigns supreme. Contemporary constitutional theory has largely dematerialised popular sovereignty and moved it into the processes by which citizens, as free and equals, can reach common understandings about the political structure of their society. Processes gain this attribute by their reflection of ideals of private and public autonomy – and so we are hardly faced by the crude choice, posited in the paper, between the mere will of a given collective (popular sovereignty) and enlightened principles of social interaction (public reason); there is much middle ground to explore. But what most political theorists, except perhaps the most hardcore defenders of natural law, have in common is that they see public autonomy as key to translating moral requirements into positive law; John Rawls is a good example here. Given our disagreements about morality, we need processes for deciding between the various options, and these processes are primarily those by which citizens realise their public autonomy. This means participation all the way down and implies – as Jeremy Waldron puts it – that ‘a question about democracy, as much as any political question, should be settled by democratic means.’ This includes not only constitutional substance and procedure, but also the scope of the polity (or polities) in which we want to be governed. Thus, public autonomy needs to enter the picture even before we can determine whether a certain issue should be subject to global, regional or national regulation – if we are serious about our commitment to private and public autonomy as pillars of modern politics, the fundamental structures of global politics and law have to flow, in one way or the other, from participatory, public processes.

In Mattias’s vision, though, public autonomy is largely out of the game when it comes to constitutional essentials; it reappears only within the structures his constitutional paradigms have already set – for example, within the framework of subsidiarity that determines the right level at which political decisions should be made. This turns central values of the modern political tradition on their head – and as such, it is certainly a U-turn; if it is also ‘Copernican’, only time will tell. Underlying this shift is the hope to put politics back into the bottle, to tame it by recourse to prior, more sophisticated understandings of what is right and what is wrong. Mattias’s is a grand design, perhaps best accomplished by a philosopher-king, or an enlightened judge. It is a design meant to bring to life the dream of reason.